JOINDER AND SPLITTING OF CAUSES OF ACTION.* By CHARLES E. CLARK t T HE pleading rules concerning joinder and splitting of causes of action are complements of each other, though designed to achieve different objectives. The joinder rule is that separate causes cannot be "joined" or pleaded in the same suit unless they fall within one of the classes of permissible joinder specified in the codes. The purpose of the rule is to prevent too wide a field of litigation and too diverse issues in a single suit and thus to avoid a case of undue con- fusion and complexity. The rule against splitting is that a single cause shall not be "split" or divided among several suits. This is designed to prevent litigation of the same question in different suits. It therefore compels a certain extension of the issues in a single suit on pain of forfeiting the opportunity to litigate them elsewhere. Each rule is at least based upon reasons of common sense, though applications of each may at times seem questionable. As the terms in which they are stated indicate, their application in particular cases will depend upon the meaning given to a term of frequent use in the codes-the "cause of action", or group of operative facts giving occasion for judicial action.1 The difficulties arising in ap- plying the rules are due in the main to the fact that this term is of indefinite content, and the courts have divergent views as to its exact meaning as well as to the policy involved. In the matter of joinder of actions generally, the tendency has been continually to allow the plaintiff more opportunity to extend the scope of a single suit. This has been achieved both by more flexible statutory provisions, which affect not merely joinder of *This article in substance will appear as a part of a chapter in a book on Code Pleading, to be published by the West Publishing Company, St. Paul, Minn. tProfessor of Law, Yale University. IThis concept has been discussed at some length by the writer in an article, "The Code Cause of Action," 33 YALE L. J. 817 (x924). For a some- what different approach, see 0. L. McCaskill, "Actions and Causes of Actions," 34 ibid. 614 (1924), and criticism by the writer, 34 ibid. 879 (1925). MICHIGAN LAW REVIEW causes but also joinder of parties,2 and by a more liberal definition of code terms. JOINDER OF CAUSES-HISTORICAL OUTLINE At Common Law. Under the common law system of pleading unity of the subject matter in a suit was secured by the writ sys- tem and the forms of action. It is not entirely clear just what part of this system furnished the yard stick by which the limitation of subject matter was to be measured-whether the process, the form of action, the plea or the judgment. The various somewhat con- flicting rules have been well set forth by Professor Sunderland.3 In general, however, the arbitrary limitations of the forms of action necessarily operated to restrict the issues of a single action. Thus various claims falling within the legal limits of a certain form of action might be joined in different counts, even though based on widely separated groups of facts; while claims redressed in different forms of action could not be joined no matter how closely inter- woven were the facts upon which they were based. 4 It resulted that a kind of legal similarity of claim, rather than a unity of oc- -See E. R. Sunderland, "Joinder of Actions," i8 MIcH. L. REv. 571; 32 YALx L. J. 384; 35 ibid. 85. 'Op. cit., note 2 supra. See also TIDD, PRAC. 9th ed., IX,I2; CHr"TY, Pi. 2o6; SHIPMAN, C. L. PL. (Ed. Ball.) 201, 203; KEIGWIN, CAS. EQ. PL. 430 et seq.; H. J. Howe, 14 ILL. L. Rgv. 58i; 2o CoL. L. REv. 712, 8oo (causes of action in tort and in contract cannot be joined): cases collected, D~c. DiG. AcTioNs, Sec. 39-4I; Cf. Sawyer v. Child, 83 Vt. 329, 75 Atl. 886 (trespass and trover not joinable at common law); Newton's Admx. v. Am. Car. Sprinkler Co. 87 Vt. 546, go At. 583 (so of trespass and case) ; Bull v. Mathews, 2o R. I. 100, 37 Atl. 536 (so of trover and common counts in assumpsit) ; O'Brien v. Moskol, 45 R. I. 486, 123 Atl. 5o8 (same) ; Dean v. Cass, 73 Vt. 314, 5o Atl. io85 (so of claims on a false warranty in assumpsit and in tort) ; Drury v. Merrill, 2o R. I. 2, 36 Atl. 835 (claims for breach of promise of marriage and on a note are joinable) ; Lee v. Springer, 73 Vt. 183, 5o AtI. 8og, (several distinct assaults; joinable). 'There seem to have been two exceptions, based upon the historical origins of the actions; debt and detinue, originally one action, could be joined, and trover, which developed from case, might be joined with it. Cf. KEIGwIN AND SHnIPMAN, cited supra; Mut. Life Ins. Co. v. Allen, 212 Il. 134, 72 N. E. 200; Ayer v. Bartlett, 26 Mass. (9 Pick.) I56. Matter not joinable when made the subject of an independent claim might sometimes be added in aggravation of the damages; as in trespass to real property, where the taking of goods, a per- sonal assault, seduction of the plaintiff's wife or daughter, injury to reputation and even slander, might be alleged to increase the damages. Bracegirdle v. JOINDER OF CAUSES currence of the events relied upon, was achieved. No restriction based upon the cause of action, or group of operative facts, was used.5 it Equity. In equity we have a situation much more nearly approaching that now existing in code pleading. Since in equity the aim was to settle an entire controversy at one time, it was per- missible to bring in all closely related matters. The rule was a broad one, resting largely in the discretion of the court. It was stated, both as to parties and subject matter, as a rule against "multifarious- ness." A bill might be multifarious because of a joinder of an im- proper number of either unrelated parties or unrelated issues or both. In accordance with the rules of equity pleading in general, these rules were not cast in definite and precise form. We do find, however, statements indicating the later code rule as to parties,6 and also statements that all the issues considered should arise out of the same transaction, or out of transactions connected with the same subject matter.7 These phrases will be recognized as occurring in the most famous of the code classes of joinder of causes." Under the Code. It is not surprising to find the code rules to a certain extent a combination of the common law and equity rules. Attempts have been made to deduce extensive conclusions as to the views of the codifiers not only on this subject but upon the entire code, including the union of law and equity, from what they did here.9 It would seem, however, that this is to read too conscious Oxford, 2 M. & S. 77; Tinker v. Colwell, 193 U. S. 473, 24 Sup. Ct. 505; Mer- riman v. McCormick Co. 86 Wis. 142, 56 N. W. 743. 5Objection has been made to this statement. McCaskill, op. cit., note i, supra; at pp. 623-6; cf. KEIOWIN, CAs. CODE PL. 235n. It is thought that its point has been misunderstood. Of course the extent of the subject matter of a single case was limited at common law; but it was done by the formulary system; and the use of the cause of action as a unit of ineasurement is a device of the code, developed largely from the equity procedure. See my article, note I, supra. "See STORY, EQ. PL. (870) Sec. 76c; Murray v. Hay, i Barb. Ch. 59; Brinkerhoff v. Brown, 6 John. Ch. 139; Brown v. Guarantee Trust Co. 128 U. S. 403, 9 Sup. Ct. 125; 32 YALE L. J. 384; 33 Ibid. 817-82o. 7STORY, EQ. PL. Secs. 271, 272, 539; Bolles v. Bolles, 44 N. J. Eq. 385, 14 Atl. 593; Gaines v. Chew, 2 How. 619; KEIGWIN, CAS. EQ. PL,. ig8 et seq., CAS. CoDE PL. 439. "Discussed hereinafter. 9McCaskill, op. cit., note i, supra, at page 624 et seq. and see my criticism, 34 Yale L. J. 879. MICHIGAN LAW REVIEW a purpose into their efforts. They apparently thought it necessary to put some limitation upon the extent of a single suit; what more natural than to work it out from what was known before? Yet the forms of action were abolished. So in the original New York Code of 1848 they stated classes of suits-seven in number-of similar forms of claims, and provided that joinder might be had within these classes.'0 The method is somewhat similar to that of the common law, since similarity of legal claims seems particularly to have been looked for. It is noteworthy, however, that they definitely cut across the old common law forms. Thus, as pointed out in the following section, the classes were in some respects less restricted than at common law, and in others more so; the common law action on the case for example allowing joinder of claims now appearing in several of the code classes. It appears, however, that the joinder thus permitted was not felt sufficient, for four years later in 1852 the famous provision was added, directly from the equity practice, that there might be joined causes of action "arising out of the same transaction or transactions connected with the same subject of the action.""' This illogical combination of joinder classes, some based upon similarity of legal claim and some upon unity of occurrence, has persisted to the present time in most of the codes.